Christie Aides Say Lawmakers Can Grant Bridge Case Immunity

New Jersey Governor Chris Christie is sworn in by Chief Justice of the New Jersey Supreme Court Stuart Rabner for his second term on January 21, 2014 in Trenton, New Jersey. Photographer: Jeff Zelevansky/Getty Images

March 22 (Bloomberg) -- Two former aides to New Jersey
Governor Chris Christie say state lawmakers probing manufactured
traffic jams at the George Washington Bridge can give them
immunity from prosecution for documents they refuse to produce.

Bridget Anne Kelly, the ex-deputy chief of staff, and
William Stepien, a former campaign manager, asserted their
constitutional right against self-incrimination rather than
turning over documents to a committee of lawmakers investigating
lane closures that snarled traffic in Fort Lee, New Jersey.

The committee sued both ex-aides to compel them to produce
the documents, and the judge asked both sides to say whether
lawmakers can grant immunity to witnesses who take the Fifth and
enforce compliance by citing a witness for contempt. While the
committee claims the law is unsettled, lawyers for Kelly and
Stepien derided that position as dishonest and nonsensical.

“Despite its newly minted confusion over whether it has
power to grant immunity, the committee unequivocally has that
power,” Kevin Marino, Stepien’s attorney, said in a filing in
state court in Trenton, New Jersey. By saying it can’t compel
document production by granting immunity, the committee engaged
in “an exercise in intellectual dishonesty,” he wrote.

The filings are the final submissions before Superior Court
Judge Mary Jacobson rules on committee lawsuits seeking to
overcome Fifth Amendment objections of Kelly and Stepien. They
are the only two of more than 30 witnesses to plead the Fifth
over the production of documents. David Wildstein, a former
Christie appointee, pleaded the Fifth rather than testify.

Criminal Probe

Kelly and Stepien say they fear incriminating themselves as
U.S. prosecutors pursue a criminal probe of lane closures from
Sept. 9 to Sept. 12, which have tarnished Christie, a
Republican, as he weighs a White House run in 2016. Fort Lee’s
mayor, a Democrat, has said he believes the tie-ups were payback
for him not endorsing Christie’s re-election campaign last year.

The committee’s probe, led by attorney Reid Schar, is
in a critical phase. Schar has argued that Kelly and Stepien are
key to the question of who ordered the shutdown and why. Marino
claims Stepien is an innocent man who had nothing to do with the
tie-ups, and e-mails released by Schar so far prove that.

Jacobson asked about two types of immunity. One was “use
immunity,” which means prosecutors can’t use a witness’s words
against him but can build leads against him based on his words.

She also asked about “derivative-use immunity,” which
means prosecutors can’t use a witness’s words against him or
develop leads based on his testimony. If a witness with
derivative-use immunity is indicted, prosecutors must show the
evidence was developed independently of his words.

‘Common Sense’

Kelly attorney Michael Critchley argued in his filing
that the committee’s “attempt to surrender the power” to grant
immunity is “contrary to law and defies common sense.”

Lawmakers know that if the judge “acknowledges that the
committee has the power to grant derivative-use immunity, the
U.S. Attorney’s Office may intervene and terminate this
legislative inquiry,” Critchley argued.

Marino argued that New Jersey law grants the committee
“power to confer use and derivative-use immunity for the
production of documents.” He said that when the federal or
state government “compels a witness to testify pursuant to a
grant of immunity, both state and federal prosecutors must
respect that immunity grant.”

Both Critchley and Marino derided Schar’s position that the
committee can’t cite a witness with contempt for failing to
comply with a subpoena. They said the Assembly Transportation
Committee, which preceded the current investigative panel, cited
Wildstein for contempt when he refused to testify.

‘Fast, Loose’

“The committee’s willingness to play fast and loose with
individuals’ constitutional rights to suit its investigative
ends is, to say the least, troubling,” Marino wrote.

Wildstein was Christie’s second-highest appointee at the
Port Authority of New York and New Jersey, which runs the
bridge. He resigned in December.

Critchley and Marino both argue that the committee failed
to show it’s a foregone conclusion that the subpoenaed documents
exist, are in their client’s possession, and are authentic.

Nearly a month before the lane closures, Kelly sent an e-mail to Wildstein, saying: “Time for some traffic problems in
Fort Lee.” Wildstein replied: “Got it.” Critchley argued
Schar can’t prove the authenticity of the e-mail.

“Ms. Kelly has never conceded -- nor is she obligated to
concede -- that she created, caused to be created, possessed or
did not possess, or in any way confirmed that the demanded
documents are responsive to the subpoena,” Critchley wrote.
“Simply put, the committee cannot authenticate the demanded
documents without Ms. Kelly.”

The cases are New Jersey Legislative Select Committee on
Investigations v. Kelly, MER-L-350-14, and New Jersey
Legislative Select Committee on Investigations v. Stepien, MER-L-354-14, Superior Court of New Jersey, Mercer County (Trenton).